Cheng v Minister for Immigration & Multicultural & Indigenous Affairs

A copy of the statement was sent by ECU to DIMIA. Ms Cheng pursued an internal review and appeal process at ECU to no effect. On 19 February 2004 a Committee of Review of ECU rejected her appeal. It found that her grounds for review were invalid and that her course status should remain unchanged. 7 On 31 March 2004 ECU sent Ms Cheng a non-compliance notification under s 20 of the ESOS Act. By that notice she was advised that she had breached a condition of her student visa requiring satisfactory academic performance in the course in which she was enrolled. The notice contained the following statements: Excluded 6 months Pursuant to section 137J of the Migration Act 1958, your student visa will cease on the 28th day after the date of this notice, unless you report to DIMIA by that time. The day count begins on the first day after the date of this notice and ends on the 28th day thereafter. … You must report personally to a compliance officer at the following Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) office: [Perth address] with photographic identification of yourself (preferably your current passport), and a copy of this Notice to explain the breach of your student visa condition as specified above. If you fail to bring satisfactory identification to DIMIA the automatic visa cancellation process will continue and your student visa will be cancelled. If you report to DIMIA as required under this Notice, the automatic cancellation of your student visa will not proceed, but a decision will then be made whether or not to cancel your visa. Your student visa will not be cancelled if you can show that no breach occurred. 8 Ms Cheng attended upon an officer of DIMIA on 27 April 2004. At the end of their meeting the officer issued her with a Notice of Intention to Consider Cancellation of her student visa under s 119 of the Migration Act 1958 (Cth). The possible grounds of cancellation set out in the notice were as follows: On 31/03/2004 Edith Cowan University (ECU) reported to DIMIA that you failed to meet academic requirements in semester 1 & 2 of 2003. (Attached Academic Statement) Evidence shows that you breached condition 8202 - academic performance. On 31 May 2004 Ms Cheng attended a follow-up interview at DIMIA with a delegate of the Minister. The delegate cancelled her visa on that day. At that time DIMIA had been informed that Ms Cheng's appeal to the Committee of Review at ECU had failed. The delegate's stated reason for cancelling the visa was that she had breached visa condition 8202 by her failure to meet course requirements and by her poor academic performance. 9 In June 2004 Ms Cheng applied to the Tribunal for a review of the cancellation decision. Her migration agent made representations to the Tribunal and on 1 March 2005 she attended a hearing and gave evidence by video link. She said that her studies had suffered because of her personal crisis. On 9 March 2005 the Tribunal affirmed the delegate's decision to cancel the visa. Ms Cheng applied for judicial review of the Tribunal's decision. That application was heard by Siopis J and was dismissed on 9 August 2006. She filed a notice of appeal against the decision of Siopis J to the Full Court. 10 As appears from an affidavit filed in the proceedings before Siopis J, ECU had a change of heart nearly 14 months after the cancellation of Ms Cheng's visa. On 25 July 2005 ECU extended the time for her to appeal from the Committee of Review to the Academic Appeals Committee. By the time that appeal came on for hearing on 7 November 2005 the Academic Appeals Committee had become the Student Appeals Committee. On 10 November 2005 the Student Appeals Committee sent Ms Cheng an email in the following terms: Thankyou for attending the Student Appeals Committee hearing Monday 7 November in relation to your appeal against your course progression status at the conclusion of semester 2 2003. After considering the issues and discussing your case at length, the Committee has agreed that you should be given retrospective withdrawal without academic penalty from the unit ACC2360 Managerial Accounting II in semester 2 2003. Therefore I am pleased to advise that your appeal has been upheld and your course status for that semester amended from suspended to good standing. You are reminded that you must make yourself fully aware of the University Academic Progress Rules and the possible implications, if you should fail units in future semesters. Please seek counselling, or consult a doctor, if you are experiencing any problems affecting your studies at any time. Statutory Framework - Education Services for Overseas Students Act 2000 11 Section 20 of the ESOS Act provides: Sending students notice of visa breaches (1) A registered provider must send an accepted student of the provider a written notice if the student has breached a student visa condition relating to attendance or satisfactory academic performance. (2) The registered provider must send the notice as soon as practicable after the breach. (3) The notice must be in a form approved by the Secretary of the Immigration Minister's Department. (4) The notice must: (a) contain particulars of the breach; and (b) state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of explaining the breach; and (c) state that the student must present photographic identification when so attending; and (d) set out the effects of sections 137J and 137K of that Act. Unincorporated registered providers (5) If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must send the notice as required under this section. Statutory framework - Migration Act 1958 12 Section 137J of the Migration Act provides: Non-complying students may have their visas automatically cancelled (1) This section applies if a notice is sent to a non-citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non-citizen (even if the non-citizen never receives the notice). (2) The non-citizen's visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day: (a) the non-citizen complies with the notice; or (b) the non-citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either: (i) in Australia; or (ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette; makes himself or herself available to an officer for the stated purpose of explaining the breach alleged in the notice. 13 Section 116(3) provides: If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. Statutory Framework - Migration Regulations 1994 14 Regulation 2.43(2) of the Migration Regulations 1994 (Cth) (Regulations) prescribes the following circumstances in which the Minister must cancel a visa: For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are: (a) each of the circumstances comprising the grounds set out in paragraphs (1)(a)and (b); and (b) in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with: (i) condition 8104 or 8105 (if the condition applies to the visa); or (ii) condition 8202. 15 Condition 8202 of Sch 8 of the Regulations relevantly provides: (1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3). (2) A holder meets the requirements of this subclause if: (a) the holder is enrolled in a registered course; or (b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student - the holder is enrolled in a full-time course of study or training. (3) A holder meets the requirements of this subclause if: (a) in the case of a holder whose education provider keeps attendance records - the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled: (i) for a course that runs for less than a semester - for the course; or (ii) for a course that runs for at least a semester - for each term and semester of the course; and (b) in any case - the holder achieves an academic result that is certified by the education provider to be at least satisfactory: (i) for a course that runs for less than a semester - for the course; or (ii) for a course that runs for at least a semester - for each term or semester (whichever is shorter) of the course. The reasons for decision of the Migration Review Tribunal 16 The Tribunal set out the factual background. It found that Ms Cheng first arrived in Australia on 10 October 2000 as the holder of a Student (Temporary) (Class TU) Visa, sub-class 560 and that she was subsequently granted two student sub-class 572 visas. She was granted a sub-class 573 student visa on 19 March 2003 to expire on 15 March 2006. It was this visa, subject to condition 8202, which was cancelled on 31 May 2004 for breach of condition 8202(3)(b) in semesters 1 and 2 of 2003. 17 The Tribunal found that ECU had certified that Ms Cheng had been excluded for a period of six months due to her unsatisfactory academic results in semesters 1 and 2. The discretion to determine the satisfactoriness or otherwise of a student's academic results was, by the express wording of condition 8202(3)(b), vested exclusively in the provider of the relevant educational services. It conferred no discretion upon immigration decision-makers to go behind the education provider's certification or to substitute their own assessment. 18 The Tribunal said: 36. Accordingly, the Tribunal finds that the review applicant breached condition 8202(3)(b), a condition attached to her subclass 573 visa, in semesters 1 and 2 of 2003. 37. The Tribunal is therefore satisfied that grounds for cancellation of the review applicant's visa exist. In light of this finding, subsection 116(3) of the Act and paragraph 2.43(2)(b) of the Regulations require that the review applicant's visa must be cancelled. On the basis of the reasoning in [Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460] and [Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574], the Tribunal does not have any discretion in this matter. The grounds for review of the Tribunal's decision 19 Ms Cheng sought to identify jurisdictional error on the part of the Tribunal in four respects, as appears from her further amended application for review:

1. The notice issued by ECU under s 20 of the ESOS Act was defective in failing to certify unsatisfactory academic results in semesters 1 and 2 of 2003. Absent such certification the Tribunal could not have been satisfied that Ms Cheng failed to meet the requirements of condition 8202(3)(b) (grounds 1.1-1.3).
2. While it was for the education provider to certify for the purpose of condition 8202(3)(b) that Ms Cheng's academic result was not satisfactory, the Minister had to be satisfied that a breach of the condition had occurred. The Tribunal erred in failing to consider Ms Cheng's claim that ECU did not properly apply its own rules when dealing with her exclusion from the course (grounds 2.1-2.3).
3. The Tribunal erred in failing to find that there had been want of procedural fairness where the delegate had cancelled Ms Cheng's visa without first inviting her to explain the alleged breach and to give evidence about it (grounds 3.1-3.3).
4. The s 20 notice was misleading as it gave the impression that the Minister had a discretion whether or not to cancel the visa for breach of the academic performance condition. Ms Cheng was thereby deprived of procedural fairness in that, had she been aware of the true position, she could have allowed the cancellation to proceed and then apply for revocation of it (grounds 4.1-4.4). Reasons for judgment of the primary judge 20 At the hearing before the primary judge Ms Cheng sought to tender evidence in three affidavits, two sworn by herself on 27 July 2005 and 11 November 2005 and one by Mr Christopher Narayanan, a solicitor with CGN Legal which was representing Ms Cheng before his Honour. His Honour received them provisionally on the basis that he would rule on their admissibility in his reasons for judgment. 21 Mr Narayanan's affidavit exhibited, inter alia, a transcript of an audio tape of the hearing before the ECU Committee of Review, a copy of ECU's "Admission, Enrolment and Academic Progress Rules" and a facsimile sent to ECU requesting that it grant an extension of time within which to appeal against the decision of the Committee of Review. ECU had agreed to that extension. 22 In her affidavit of 27 July 2005 Ms Cheng exhibited documents relating to the circumstances of the termination of her pregnancy, her dealings with officers at ECU, her appeals at ECU and the lodgment of her application with the Tribunal. She deposed as to her dealings with DIMIA following the receipt of the s 20 notice. She said that following her six month exclusion she continued her studies at ECU. The exclusion did not mean that she was forbidden thereafter to enrol in any unit previously failed. She also said that she did not believe that ECU had observed proper procedures or taken into account relevant considerations when it decided to exclude her from the course. In her supplementary affidavit of 11 November 2005 Ms Cheng said that on 25 July 2005, after the Tribunal decision, ECU had extended the time for her to appeal from the Committee of Review. On 10 November 2005 ECU had allowed her appeal and her academic record had been changed to reflect that position. 23 His Honour observed that a change of circumstances following the Tribunal decision would not of itself constitute a ground for impugning the decision or for reconsideration of it. His Honour said, however, that he could receive evidence of the circumstances of a hearing where an allegation of a breach of procedural fairness was made in relation to it. He excluded as irrelevant the transcript of the hearing before the ECU Committee of Review and the Committee's rules. These had not been before the Tribunal. As to the correspondence with ECU regarding the extension of time to appeal against the decision of the Committee of Review, those documents postdated the Tribunal decision and were therefore irrelevant and inadmissible. On this basis his Honour refused to receive the affidavit of Mr Narayanan into evidence. In so doing he was undoubtedly correct. 24 His Honour did admit so much of Ms Cheng's evidence as concerned her dealings with DIMIA going to whether there had been a want of procedural fairness in its dealings with her. As to her affidavit of 11 November 2005 the evidence that ECU had subsequently changed its mind and allowed the appeal was found to be irrelevant to the question whether the Tribunal had fallen into jurisdictional error. The whole of Ms Cheng's affidavit of 11 November 2005 was therefore held to be inadmissible. 25 His Honour dealt with each of the grounds of review which have been summarised above. As to the first ground he referred to the decision of Minister for Immigration and Multicultural and Indigenous Affairs v Zhou (2006) 152 FCR 115 in which the Full Court had confirmed that there is no legal inter-relationship between s 20 of the ESOS Act and s 116 of the Migration Act. That was so even where, as in the present case, the giving of a s 20 notice gave rise to the delivery of a notice under s 119 of the Migration Act. His Honour said (at [56]): In this case, the applicant's visa was cancelled under s 116 of the Act on the grounds that the applicant had breached Condition 8202 of the visa. Section 116 of the Act gives the first respondent the power to cancel the visa if he or she is satisfied that the visa holder has not complied with a condition of the visa. Section 116(3) read with reg 2.43(2) states that the first respondent has no discretion and must cancel the visa where there is a breach of a Condition 8202 of the visa. His Honour went on to observe that under condition 8202(3)(b) there is compliance with condition 8202 if the holder of the visa achieves an academic result for the semester in question which is certified by the education provider to be "at least satisfactory". By the time the matter came before the Tribunal the procedures under the Act had been complied with in that a s 119 notice had been issued. The Tribunal had before it evidence of Ms Cheng's academic transcript for semesters 1 and 2 in the 2003 academic year and her failed efforts to review her six month exclusion by ECU. Ms Cheng did not produce to the Tribunal any certificate from ECU certifying that her academic results for either the first or second semester for 2003 was "at least satisfactory". In those circumstances the Tribunal did not fall into jurisdictional error in upholding the decision to cancel the visa. 26 His Honour also rejected the second ground alleging failure by the Tribunal to inquire into whether ECU had complied with its own internal appeal processes. On the face of the record there was no certificate that Ms Cheng's academic results were "at least satisfactory" in the relevant period. There was nothing in the facts before the Tribunal to cause it to doubt that she was accorded her academic status as "excluded for six months" by ECU as a result of her poor academic results. There was no jurisdictional error on the part of the Tribunal. 27 In relation to her complaint that she did not have an opportunity to explain the breach when she attended the departmental office on 27 April 2003 the Tribunal again referred to the absence of any legal interaction between a s 20 notice under the ESOS Act and the cancellation of a visa under s 116 of the Migration Act. The primary judge said (at [65]): It does not avail the applicant to impugn the procedural fairness of a process which is legally unrelated to the process which led to the impugned decision, namely, the cancellation of the visa under s 116 of the Act. In any event, his Honour held it was unnecessary for the Tribunal to consider procedural fairness in the way the delegate dealt with her because the hearing before the Tribunal was itself a merits review hearing and defects leading to the decision of the delegate were cured by the review undertaken by the Tribunal. 28 On the question of the allegedly misleading character of the s 20 notice, the primary judge said (at [72]): As the impugned decision was made under s 116 of the Act, it does not, therefore, avail the applicant to complain of procedural unfairness in relation to a process which is unrelated to the legally separate process that led to the making of the impugned decision by the first respondent. His Honour rejected submissions on behalf of Ms Cheng that the s 20 notice contained other defects. He reiterated that a s 20 notice is not an instrument of cancellation and is not a precondition to cancellation. Any defect in the s 20 notice does not invalidate a decision to cancel a visa under s 116 of the Migration Act. Grounds of appeal against the primary judge's decision 29 There were three groups of grounds in the notice of appeal which essentially raised again the issues raised before his Honour in the judicial review application. The first group (grounds 1.1 to 1.6) related to the allegedly misleading character of the s 20 notice. Its words were said to imply a discretion in the Minister whether to cancel. It was said to "create a trap" by encouraging the visa holder to explain circumstances to avoid automatic cancellation. However in admitting the breach the appellant would have the visa cancelled. For this reason it was said Ms Cheng was deprived of natural justice. His Honour allegedly erred in finding that the procedural unfairness of which Ms Cheng complained was unrelated to the legally separate process that led to the making of the impugned decision. Ms Cheng contended that procedural unfairness is not defeated because there is no legal interaction or relationship between the s 20 notice and the cancellation process under s 116 of the Act where the procedure revealed is unfair. To the extent that his Honour held that the Full Court decision in Zhou 152 FCR 115 defeated a claim of procedural unfairness, it was contended that the decision of the Full Court was plainly wrong. 30 The second group of grounds of appeal (grounds 2.1 to 2.5) took issue with the failure by the Tribunal to examine Ms Cheng's claim that ECU did not apply proper procedures in the internal appeals relating to her case. The primary judge was said to have erred in finding that neither Ms Cheng nor her agent advised the Tribunal that she intended to take further steps to have ECU reconsider its position. His Honour was also said to have erred in finding that there was no evidence before the Tribunal that Ms Cheng was seeking to take her appeal to the Academic Appeals Board and that the Tribunal was under no duty to make any inquiry in that regard. His Honour was also said to have erred in finding that there was no evidence before the Tribunal that Ms Cheng was seeking to pursue her appeal to the Academic Appeals Board. 31 The third group of grounds (grounds 3.1 to 3.7) alleged procedural unfairness on the part of the delegate in failing to invite Ms Cheng to be heard and to give evidence pursuant to the s 20 notice before issuing the s 116 notice. His Honour was said to have erred in holding that it would not avail Ms Cheng to impugn the procedural fairness of a process legally unrelated to that which led to the impugned decision. 32 Ms Cheng did not attend, nor was she represented, at the hearing of the appeal. She relied upon a written submission to the Court. Counsel for the Minister relied upon written submissions filed on behalf of the Minister shortly before the hearing of the appeal. Appeal grounds 1.1 to 1.6 - alleged breach of procedural fairness in relation to s 20 notice 33 The first group of grounds was that the notice sent to Ms Cheng under s 20 of the ESOS Act was misleading. It gave the false impression that if she reported to a departmental compliance officer she would have the opportunity "to explain the breach" of her student visa condition. Automatic cancellation would not proceed "but a decision would be made whether or not to cancel your visa". The first set of grounds is unsustainable. The vice of which Ms Cheng complains in the content of the notice sent to her by ECU reflected the requirements of s 20 of the ESOS Act itself. That section requires that the notice state that the student attend in person before an officer "… for the purpose of explaining the breach". The notice must also set out the effect of s 137J and s 137K of the Migration Act, ie the automatic cancellation that ensues if the student does not attend within 28 days. Ms Cheng's complaint about the notice in this case reduces to a complaint about the statutory requirements to which it responded. No question of natural justice arises. 34 It is not necessary for the purposes of these grounds to rely upon the characterisation of the ESOS Act s 20 notice process as one which has no legal interaction or relationship with the cancellation process under s 116 of the Migration Act, as to which see: Zhou (2006) 152 FCR at [39] et ff; Humayun v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 149 FCR 558 and Minister for Immigration and Multicultural and Indigenous Affairs v Yu (2004) 141 FCR 448. Appeal grounds 2.1 to 2.5 - failure to consider ECU procedures 35 The cancellation of Ms Cheng's visa flowed from her failure to meet the requirements of subcl (3)(b) of condition 8202 of Schedule 8 of the Regulations. That is her failure, in December 2003, to achieve an academic result that was certified by the education provider to be "at least satisfactory". It may be said of course that that failure does not occur until the education provider's decision-making process (including internal reviews) relevant to such certification is complete. In this case, at the time the s 20 notice was sent to Ms Cheng, the necessary condition of her visa imposed by condition 8202(3)(b) of schedule 8 was not satisfied. The condition was to be satisfied only by the requisite certificate on the part of the education provider. There is nothing in the language of condition 8202 that invites a consideration of the internal processes of the education provider which has led to a certificate or refusal to certify for a satisfactory academic result. 36 The fact that Ms Cheng, at the time of the Tribunal hearing, was pursuing a further review by the Academic Appeals Board, was not a matter which the Tribunal could take into account having regard to the absence of the requisite certificate which had stood since December 2003. Appeal grounds 3.1 to 3.7 - procedural unfairness by delegate 37 There is no basis for the complaint of procedural unfairness on the part of the delegate given that, absent certification by the education provider, the visa had to be cancelled by virtue of s 116. In any event, any unfairness at first instance would have been overtaken by the availability of full merits review by the Tribunal. There is no merit in this group of grounds of appeal. Conclusion 38 For the above reasons the appeal will be dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French, Tracey and Middleton.

Counsel for the Appellant: No appearance for the Appellant who filed a written submission.

Solicitor for the Respondent: Australian Government Solicitor